Last month, BC’s Bill 51, the Environmental Assessment Act (EA Act) received Royal Assent. The new EA Act will replace BC’s 2002 environmental assessment law and will likely come into force in late 2019, after consultation on key regulations.
At a time when the proposed new federal Impact Assessment Act – a relatively modest proposal still making its way through the Senate – is more likely to be in the news, BC’s innovative new environmental assessment law has largely flown under the radar.
Here’s why it is worth celebrating.
Advancing Reconciliation and Sustainability
BC’s new EA Act requires the Environmental Assessment Office (EAO) to promote sustainability and support reconciliation with Indigenous peoples in carrying out its responsibilities under the Act. This includes “protecting the environment and fostering a sound economy and the well-being of British Columbians and their communities.” By law this sustainability purpose must be implemented by: “carrying out assessments in a thorough, timely, transparent and impartial way, considering the environmental, economic, social, cultural and health effects of assessed projects”; “facilitating meaningful public participation throughout assessments”; “using best available science, Indigenous knowledge and local knowledge in decision-making”; and, “coordinating assessments with other governments” (s 2(2)(i).
Before referring a project to the ministers for decision, the EAO or the assessment body (e.g., a panel) must make an explicit recommendation as to whether the project is consistent with the promotion of sustainability, and the ministers responsible for the approval decision must consider, among other things, this recommendation and the sustainability and reconciliation purposes of the EAO before deciding whether or not to issue an EA certificate.
More specifically, in carrying out its responsibilities, the EAO is to support reconciliation with Indigenous peoples in British Columbia by:
(A) supporting the implementation of the United Nations Declaration on the Rights of Indigenous Peoples,
(B) recognizing the inherent jurisdiction of Indigenous nations and their right to participate in decision making in matters that would affect their rights, through representatives chosen by themselves,
(C) collaborating with Indigenous nations in relation to reviewable projects, consistent with the United Nations Declaration on the Rights of Indigenous Peoples, and
(D) acknowledging Indigenous peoples’ rights recognized and affirmed by section 35 of the Constitution Act, 1982 in the course of assessments and decision making under this Act (s 2(2)(ii).
The BC EA Act also provides for Indigenous-led assessments, in whole or in part. If an Indigenous nation gives notice that it wishes to conduct its own assessment of a project on the nation and its rights, the EAO must provide for that portion of the assessment to be carried out by the nation. Through government-to-government agreements, Indigenous-led assessments may also be substituted for the provincial process. Consensus-seeking with participating Indigenous nations, along with optional dispute resolution mechanisms, replaces a consultation-based model in the standard assessment process. The Act enables a new tariff of fees to be paid by proponents to defray the costs of participating Indigenous nations.
The new EA Act is a substantial improvement over current BC legislation
BC was an early leader in environmental assessment, but its relatively strong 1995 EA Act was replaced in 2002 by legislation that left an extraordinary degree of discretion to the provincial EAO to assess largely proponent-driven evidence. With no purpose section, few mandatory process elements, minimal public involvement required, and no decision test, it is no wonder that many British Columbians have lost faith in provincial environmental assessment, which has become a frequent source of conflict and litigation.
By way of contrast, the new BC EA Act now sets out mandatory matters to be assessed. Effects on Indigenous nations and rights recognized and affirmed by section 35 of the Constitution Act, 1982 must be assessed. Other mandatory considerations include greenhouse gas emissions (including “the potential effects on the province being able to meet its targets under the Greenhouse Gas Reduction Targets Act”), adverse cumulative effects, consistency with land use plans, or regional or strategic assessments, and effects on current and future generations. Recommendations from the EAO or an assessment body must also address these matters, and this material must be considered by the ministers in making their decision. Further, projects that are considered to have “extraordinarily adverse effects,” or are substantially the same as a project previously rejected, may be subject to a termination order early on, allowing proponents, jurisdictions and the public to avoid the time and cost of a lengthy process for a project unlikely to be approved.
A new early engagement process on an initial project description provides opportunities for Indigenous peoples and the public to become involved in assessments at a much earlier point, and community advisory committees will be established for assessments (unless there is insufficient interest).
A more detailed assessment of the new BC Act may be found here. This analysis compares BC’s new EA law to A Vision for Next-Generation Environmental Assessment in British Columbia. Released in May 2018, the Vision reflects the view of 24 environmental, social justice and community groups regarding the high-level principles that should be reflected in a new EA law in order to fully seize the opportunity to rebuild public trust, advance reconciliation and achieve sustainability.
Several important regulations will be developed over the coming year prior to the new BC EA Act coming into force. These include a new Reviewable Projects Regulation determining what activities get assessed, a regulation on fees (e.g., establishing fees to defray the costs of Indigenous participation in assessment and, we hope and expect, establishing a promised public participation fund), a regulation on regional and strategic assessments (which are enabled but not required under the new EA Act), and a regulation on dispute resolution. The Minister of Environment and Climate Change Strategy has also indicated that BC will use its regulation-making power to address the independence and qualifications of experts that will be involved in assessments. (While there is a discretionary ability to provide for peer review of evidence or obtain information about potential effects from persons other than the proponent, these things are not required by the EA Act).
The mandate letter of Minister of Environment and Climate Change Strategy directed him to “[r]evitalize the Environmental Assessment process … to ensure the legal rights of First Nations are respected, and the public’s expectation of a strong, transparent process is met.” The legal tools and guidance are there in the new EA Act to enable this to occur. Further regulatory measures under development should also assist in providing more specific direction in some areas.
At the end of the day, the BC EA Act continues to leave a high degree of discretion in the hands of the EA0 and the ministers. Ultimately the success of the EA Act in achieving its sustainability and reconciliation purposes will be determined by how that discretion is used, by this and future BC governments.